The court has agreed to allow the record label plaintiffs to conduct a forensic examination of one of two computers they have sought to inspect. The court imposed a variety of restrictions to protect the privacy of defendant Joel Tenenbaum, including detailed instructions that the plaintiffs' expert only reveal information on the computer that contains evidence of Tenenbaum's "file-sharing activity." Tenenbaum is not satisfied with the privacy protections in the court's order. Significantly, the court noted that Tenenbaum has "conceded" that the computers at issue "were...used for file-sharing activities." (h/t Recording Industry vs. The People)
In other news, Tenenbaum's counsel, Harvard Law School professor Charles Nesson, has posted to his blog a motion that he intended to file -- but didn't "because [his] team thought it disrespectful." The would-be motion sought reconsideration of the court's order forbidding Nesson from tape-recording a phone deposition of a third-party witness. An excerpt:
I ask you to reconsider your order prohibiting me from digitally recording a telephonic deposition. I ask you to distinguish rhetorical space for the function of telephonic conference among judge and lawyers from the different rhetorical space suited to the function of on-the-record deposition. I am not here asserting either the right or the intention of immediately serving the digital record of this deposition to the net (thank you to my opponents for their parentheses). I will accede to your considered judgment whatever it may be, albeit with retained objection.
In response to a request from opposing counsel to agree to this deposition by telephone I said yes if I can audio record it. I am not available at the time scheduled for the deposition, nor for certain are any of the five students who have been admitted provisionally to the bar of the court to practice with me in this case. But I would like to listen to it and be able to use a record of it in conferring with my team. If the deposition is to be used at trial I would like to have the deponent’s voice and tone as well as the stenographer’s text (which we protest at having to purchase if we are to have a record at all). My assistant is able without cost to call in on the conference line and audio record what transpires with my digital recorder. As I read the federal rules of civil procedure I am at least entitled to an exercise of your discretion to permit this.
I claim a right to audio record this deposition as part of Joel’s right to counsel. This is the cheapest and most efficient way of evidencing it.
Oh -- and Joel's mom played harp in Harvard Square.